STATE OF INDIANA		)		BEFORE THE INDIANA DEPARTMENT
		)	SS:	OF ENVIRONMENTAL MANAGEMENT
COUNTY OF MARION		)
COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
	Complainant,				)
					)
	v.				)	CASE NO. 2003-12864-A
					)
BENCHMARK CONSTRUCTION, LLC,					)
					)
	Respondent.				)

AGREED ORDER

The Complainant and the Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management, a department of the State of Indiana created by IC 13-13-1-1.

2. Respondent is Benchmark Construction, LLC ("Respondent"), which operates the batch hot mix asphalt plant with Plant ID No. 003-00292, located at 2711 Banks Avenue in Fort Wayne, Allen County, Indiana (“Site”).

3. The Indiana Department of Environmental Management (“IDEM”) has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, on May 5, 2004, IDEM issued a Notice of Violation via Certified Mail to:

Scott Hile, President and Registered Agent

Benchmark Construction, LLC

2711 Banks Avenue

Fort Wayne, Indiana 46802

1. A records review was conducted of the Site by a representative of IDEM’s Office Air Quality (OAQ). The following violations were in existence or observed at the time of this record review:

a. Pursuant to 326 IAC 2-8-3(h) and condition B.17 of Federally Enforceable State Operating Permit (“FESOP”) No. 003-9712-00292, for purposes of a FESOP renewal, a timely application is one that is submitted at least nine (9) months prior to the date of expiration of the source’s existing permit.

The FESOP for this source expired on July 22, 2003 however a FESOP renewal application was not submitted until May 7, 2003. This application was submitted less than nine (9) months prior to the expiration of the source’s existing permit, a violation of 326 IAC 2-8-3(h) and condition B.17 of permit No. 003-9712-00292.

b. Pursuant to 326 IAC 2-7-5 and condition D.1.14 of FESOP No. 003-9712-00292, the source is required to submit a quarterly summary to document compliance within thirty (30) days after the end of the quarter being reported.

The Respondent failed to timely submit quarterly summaries for 1^st Quarter 2003, 2^nd Quarter 2003 and 3^rd Quarter 2003, violations of 326 IAC 2-7-5 and condition D.1.14 of FESOP No. 003-9712-00292.

2. On January 20, 2004 IDEM received quarterly summaries for 1^st, 2^nd, and 3^rd Quarter 2003.

3. On May 17, 2004, IDEM issued the renewal FESOP permit 003-17248-00292.

4. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

1. This Agreed Order shall be effective ("Effective Date") when it is approved by the Complainant or her delegate, and has been received by the Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with conditions B.17 and D.1.14 of FESOP permit No. 003-17248-00292.

3. Respondent is assessed a civil penalty of Seven Thousand Dollars ($7,000). The civil penalty shall be paid in the following manner: Five (5) monthly payments of One Thousand One Hundred and Sixty-Six Dollars ($1,166) and one (1) payment of One Thousand One Hundred and Seventy Dollars ($1,170). Completion of the payments shall not exceed six (6) months from the Effective Date of the Order. Interest shall accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

4. Said penalty amount shall be due and payable to the Environmental Management Special Fund within thirty (30) days of the Effective Date of this Agreed Order.

5. Civil penalties are payable by check to the Environmental Management Special Fund. Checks shall include the Case Number of this action and shall be mailed to:

Cashier

IDEM

100 N. Senate Avenue

P. O. Box 7060

Indianapolis, IN 46207-7060

6. In the event that the civil penalty required by Order paragraph 3 is not paid within thirty (30) days of the Effective Date of this Agreed Order, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1-101. The interest shall continue to accrue until the civil penalty is paid in full.

7. This Agreed Order shall apply to and be binding upon the Respondent, its successors and assigns. The Respondent's signatories to this Agreed Order certify that they are fully authorized to execute this document and legally bind the parties they represent. No change in ownership, corporate, or partnership status of the Respondent shall in any way alter its status or responsibilities under this Agreed Order.

8. In the event that any terms of the Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if the Agreed Order did not contain the invalid terms.

9. The Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

10. This Agreed Order shall remain in effect until Respondent has complied with all terms and conditions of this Agreed Order.

TECHNICAL RECOMMENDATION:		RESPONDENT:
Department of Environmental Management		Benchmark Construction, LLC
By:	_____________________________	By:	______________________________
	David P. McIver	Printed:	______________________________
	Chief, Air Section	Title:	_____________________________
	Office of Enforcement
Date:	_____________________________	Date:	______________________________
COUNSEL FOR COMPLAINANT:		COUNSEL FOR RESPONDENT:
Department of Environmental Management
By:	_____________________________	By:	______________________________
	Office of Legal Counsel
Date:	_____________________________	Date:	______________________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT THIS _____ DAY OF _______________, 2005.

For the Commissioner:

Signed on 1/6/05

Felicia A. Robinson

Deputy Commissioner for

Legal Affairs